UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1350

NITA WIDYANTI,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals. (A79-508-408)

Submitted:

October 25, 2004

Decided:

May 26, 2005

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Stanley J. Ellenberg, LAW OFFICES OF STANLEY ELLENBERG &

ASSOCIATES, Philadelphia, Pennsylvania, for Petitioner. Peter D.
Keisler, Assistant Attorney General, Linda S. Wendtland, Assistant
Director, John S. Hogan, OFFICE OF IMMIGRATION LITIGATION,
Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM:
Nita

Widyanti,

native

and

citizen

of

Indonesia,

petitions for review of an order of the Board of Immigration

Appeals

(Board)

affirming,

without

opinion,

the

immigration

judges order denying her applications for asylum, withholding of

removal, and protection under the Convention Against Torture.
In her petition for review, Widyanti challenges the
immigration judges determination that she failed to establish her
eligibility for asylum.

To obtain reversal of a determination

denying eligibility for relief, an alien must show that the

evidence [s]he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.
INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).

We have

reviewed the evidence of record and conclude that Widyanti fails to

show that the evidence compels a contrary result.

Accordingly, we

cannot grant the relief that she seeks.

Additionally, we uphold the immigration judges denial of
Widyantis request for withholding of removal. Because the burden
of proof for withholding of removal is higher than for asylum--even
though the facts that must be proved are the same--an applicant who
is ineligible for asylum is necessarily ineligible for withholding
of removal under [8 U.S.C.] 1231(b)(3). Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004).

Because Widyanti fails to show that

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she is eligible for asylum, she cannot meet the higher standard for
withholding of removal.
We also find that Widyanti fails to meet the standard for
relief under the Convention Against Torture.

To obtain such

relief, an applicant must establish that it is more likely than

not that he or she would be tortured if removed to the proposed
country of removal.

8 C.F.R. 1208.16(c)(2) (2004).

We find

that Widyanti fails to make the requisite showing.

Finally, Widyanti claims that the Boards refusal to
allow her to file an untimely opening brief in support of her
appeal violated her rights to due process.

In order to succeed on

a procedural due process claim, Widyanti must make a showing of

prejudice.

See Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002);

Farrokhi v. INS, 900 F.2d 697, 703 n.7 (4th Cir. 1990).

We may

find prejudice only when the rights of [an] alien have been
transgressed in such a way as is likely to impact the results of
the proceeding. Rusu, 296 F.3d at 320-21 (internal quotations and
citation omitted).

We find that Widyanti fails to show that the

results of her proceeding would have been different if she had been
allowed to file a brief and therefore fails to make the requisite
showing of prejudice.
Accordingly,

we

deny

the

petition

for

review.

We

dispense with oral argument because the facts and legal contentions

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are adequately presented in the materials before the court and

argument would not aid the decisional process.

PETITION DENIED

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